MOTIONS PRACTICE: TOOLS FOR YOUR DEFENSE Regional Juvenile - PDF document

MOTIONS PRACTICE: TOOLS FOR YOUR DEFENSE Regional Juvenile Defender Workshops February-May 2006 Professor Tamar Birckhead UNC School of Law MOTIONS PRACTICE IN JUVENILE COURT � A CONTRADICTION IN TERMS? � FORM OF THE MOTION IN NC? � See generally, NC GL Article 52 (starts at 15A- 951) � See NC GL 15A-953 for motions practice in district court WHAT CAN A MOTION ACHIEVE? � Forces you to fully develop your argument � Protects client’s rights � Weakens state’s morale � Increases defense’s bargaining power � Demonstrates the quality of your advocacy to judge/ADA/client � Strengthens atty-client relationship and builds client trust 1

MOTIONS WORK! � The results are not “academic” � Effective and persuasive � Much success in the last two years in Durham and Orange juvenile courts � General motions � Motions specific to the charges and the facts WHAT TO CONSIDER BEFORE FILING A WRITTEN MOTION? � All practice is local: � But don’t let this stop you! � Who is the judge? � Who is the ADA? � Is this the best way to get what I need? � Do I need to preserve the record for appeal? …STILL NOT SURE WHETHER TO FILE A WRITTEN MOTION? BREAK IT DOWN: � What do I ultimately want to accomplish? � Will my client’s rights be protected if I don’t get what I want and I haven’t filed a motion? 2

WHAT IS YOUR ULTIMATE GOAL? � TO GET INFORMATION? � DISCOVERY � TRANSCRIPT � COMPETENCY DETERMINATION � TO GET FUNDS? � EXPERT � INVESTIGATOR � TO GET A COURT ORDER? WHEN DO I WANT TO FILE THE MOTION? � To be considered when you are first assigned the case. Ask yourself: � When is the issue ripe? � Pretrial? � At trial? � Post-trial? WHAT MOTIONS DO I FILE PRE-TRIAL? � PRE-TRIAL � MOTIONS BASED ON THE PETITION � DISCOVERY MOTIONS � COMPETENCY MOTION � MOTION FOR FUNDS TO HIRE EXPERT � MOTION TO SUPPRESS � MOTION FOR TRANSCRIPT � MOTION TO CONTINUE � MOTION TO DISMISS 3

WHAT MOTIONS DO I FILE AT TRIAL? � AT TRIAL � MOTION TO CHANGE VENUE � MOTION FOR RECUSAL � MOTION TO SEQUESTER � MOTIONS IN LIMINE � MOTION TO DISMISS AT END OF STATE’S CASE � MOTION FOR FINDING OF NOT DELINQUENT WHAT MOTIONS DO I FILE POST-TRIAL? � POST-TRIAL � NOTICE OF APPEAL � CHANGE OF VENUE � MOTION FOR DEFERRED DISPOSITION � SENTENCING MEMORANDUM � MOTION FOR APPROPRIATE RELIEF � PETITION TO EXPUNGE JUVENILE RECORD PUT IN THE EFFORT AND BE CREATIVE! � BE INVENTIVE – START FROM SCRATCH, IF NECESSARY � TAKE CHANCES – YOU CAN CHANGE THE PRACTICE OF YOUR COURT � DO THE LEGAL RESEARCH – IT’S WORTH IT � LET YOUR GOAL DRIVE YOUR METHOD 4

HOW DO I PREPARE FOR THE HEARING? � AFTER FILING THE MOTION, YOUR WORK IS NOT OVER � PREPARE YOUR ORAL ARGUMENT � PREPARE YOUR WITNESSES � PREPARE YOUR CROSS-EXAMINATION � KNOW THE LAW AND BRING COPIES OF CASES � KNOW THE APPLICABLE JUVENILE CODE CAVEATS FOR MOTIONS PRACTICE � FILE ONLY WHEN YOU HAVE A GOOD REASON � COLLECT OTHERS’ MOTIONS – BORROW FROM THEM WHEN APPROPRIATE � GET FEEDBACK FROM COLLEAGUES � KNOW YOUR JUDGE � KNOW YOURSELF AND, FINALLY… � COMMUNICATE WITH YOUR CLIENT � EDUCATE THEM ON WHAT YOU’RE TRYING TO ACCOMPLISH � SHARE YOUR MOTIONS STRATEGY WITH THEM � EMPOWER THEM WITH UNDERSTANDING 5